Summons for a Managing Director or Employee in Germany

By Dr. Julius Hagen, Attorney at Law

Check the role stated in the summons

In a corporate investigation, a summons is rarely only about the person named in the letter. What that person says may affect the company, colleagues and their own criminal exposure. A summons often reaches a company’s management or employees before anyone has established internally who holds which information and who should respond to the authorities. The sender, reference number, alleged facts and procedural role stated in the letter should therefore be checked immediately. A police summons addressed to a suspect generally does not create a duty to attend. A suspect must attend a summons issued by the public prosecutor. For witnesses, the duty to attend and give evidence also depends on whether the summons comes from a court, the public prosecutor or the police acting on a prosecutorial order.

Being described as a witness does not eliminate personal exposure. Questions about personal responsibility, company processes or particular documents may show that a person described as a witness is facing individual criminal exposure.

Suspect and witness status

Suspects may remain silent and consult a defence lawyer before questioning. The interview is intended to give them an opportunity to challenge the suspicion and present exculpatory facts. That does not make an early statement automatically advisable. Without access to the file, it is unclear what information is already available, what the authorities expect the person to confirm and whether an apparently helpful addition will create new inconsistencies.

A witness has a different procedural position. The witness may be entitled to refuse testimony because of a close personal relationship with the suspect under section 52 of the German Code of Criminal Procedure. Section 55 protects against individual answers that could expose the witness or a relative to criminal or regulatory prosecution. If the person is in fact being questioned as a possible offender, a section 55 warning does not replace the safeguards for a suspect; the procedural role and the right to remain silent must be examined.

Managing directors: company interests and personal responsibility

For managing directors, the company’s interests and personal criminal responsibility can overlap. Investigators may ask about decisions, approvals, payment flows or control duties. A statement intended to protect the company may put the managing director’s own role at the centre of the case. Conversely, an individual defence may concern information relevant to the company’s defence or an internal investigation.

Before a joint mandate is accepted, it must be clear who the client is and whose interests the communication protects. The prohibition on acting in conflicting interests under section 43a(4) of the German Federal Lawyers’ Act is not a technical footnote. It may require separate counsel for the company, the managing director and affected employees.

File access before deciding whether to give a statement

File access shows whether the summons is based on a specific statement, an email, a booking, an internal investigation or only a preliminary suspicion. Under section 147 of the German Code of Criminal Procedure, defence counsel may inspect the investigation file and examine officially held items of evidence, although access may be restricted before the investigation is complete in certain circumstances. Before deciding whether to give a statement, the incriminating material, the documents on which it relies and outstanding investigative steps should be organised.

When preparing a statement, direct perception, knowledge derived from company records and the investigators’ interpretation of the event should be documented separately. This makes it possible to assess whether a statement fills an evidential gap, explains a document or creates a new point of attack.

Witness counsel: preparation without a coordinated account

Witnesses may have a lawyer present under section 68b of the German Code of Criminal Procedure. This is particularly important where the evidence concerns business decisions, internal controls or events that could also create personal criminal exposure. Counsel can monitor the procedure and support the exercise of testimonial or information privileges.

Responsible preparation organises the chronology and separates reliable memory from documents read later. It does not replace the witness’s account and must not become an agreement between employees about what to say. Where interviews, internal reviews or several group companies are involved, the source of each piece of information should be recorded.

Internal coordination after a summons arrives

After a summons arrives, the company should record when it arrived, who was affected, which events are mentioned and which documents exist in a protected chronology. Internal discussions must distinguish legal advice, factual clarification and any risk of influencing witnesses. Document preservation duties and legal-hold measures should be secured at the same time.

It matters whether several people connected to the same event have been summoned, whether an employee may incriminate the managing director or vice versa, and whether the company’s defence is compatible with the individual account. That assessment determines whether a shared communication line is defensible or separate defence approaches are required.

The central question is therefore not simply whether someone should attend an interview. It is who should speak, in which procedural role, on the basis of which information and with whose interests in mind.